Baker v. Brentwood College School [2011] B.C.H.R.T.D. No. 335

What questions does a Tribunal ask itself when considering whether a college has responded adequately to an Aboriginal employee’s human rights complaint?

Facts

Ms Baker, who describes herself as First Nations, had been employed in housekeeping at the respondent College for nine years when the following isolated incident occurred. In August 2010, during a lunch break, her manager made several “derogatory” and “inflammatory” and statements about First Nations[1] peoples. Ms. Baker, who had been removed from her family and placed in a residential school at a very young age, was very offended and hurt. The College responded quickly, taking the following actions:

Launched a thorough investigation of the incident;

Suspended Ms. Nelson during the course of the investigation (from August 19 to September 21, 2010);

Prohibited Ms. Nelson from having any direct contact with Ms. Baker;

Assembled all Faculty members and staff for the purpose of restating and reinforcing the College's Principles of Community, its policies regarding discriminatory comments and behaviour and its "unequivocal expectation" that all employees would abide by these principles;

Directed that Ms. Nelson write a letter of apology to Ms. Baker;

Retained a prominent mediator with extensive knowledge and experience of First Nations issues to hold a mediation/facilitation session on September 15 with Ms. Nelson, Ms. Baker and other staff members who had witnessed the comments which are the subject of the complaint, during which time further oral apologies were made to Ms. Baker by Ms. Nelson and the other staff in attendance;

Put Ms. Nelson on notice that any further similar misconduct would result in the immediate termination of her employment;

Required Ms. Nelson to take, and enrolled her in, a number of courses and seminars to teach her how to conduct herself as a manager in a respectful workplace, which Ms. Nelson completed;

Held "respectful workplace seminars", presented by a professional facilitator, mediator, trainer and coach who holds a Master's degree in dispute resolution, on November 2, 2010 to its Food Services, laundry and housekeeping staff members, including Ms. Nelson;

Held meetings with Ms. Baker and provided a letter of apology from the College; and

Made accommodations regarding Ms. Baker's position during the summer months in order to avoid having Ms. Nelson become her temporary supervisor during that period.[2]

While Ms Baker agrees that the steps taken by the college were sufficient, she remained unsatisfied. She maintains that the steps taken by the College did little to correct Ms. Nelson’s attitudes, to alleviate her mental distress, to provide adequate work accommodation. Deeming the college’s response to be “inadequate and ineffective”, Ms Baker filed a complaint with the Tribunal, requesting the following orders:

That appropriate steps are taken to prevent this type of conduct, including adequate training for Ms. Nelson

That she be provided with counseling or stress relief services to alleviate her aggravated medical condition and to ensure that she feels safe work;

That she be ensured that her employment, especially in the summer months, will not be compromised as a result of this incident; and

That she is appropriately compensated for expenses incurred, including medical expenses and injury to dignity, feelings and self-respect.” [3]

Issue

Should the Tribunal take on this case?

Decision

No

Reasons

The Tribunal emphasized the “importance of encouraging parties to resolve matters internally and in a manner reflective of the purposes of the Code”[4]and underscored that “absent any extenuating circumstances, when an employer or service-provider responds promptly and appropriately upon becoming aware of a potentially discriminatory situation, it would not further the purposes of the Code to proceed with a complaint against that respondent.”[5] It reminded the parties that the standard to meet in human rights processes is not perfection but rather reasonableness. With these principles in mind, it used the following criteria to determine that the college’s response was adequate:

The seriousness of the alleged discriminatory conduct;

Whether the respondent acknowledged the discriminatory conduct;

The reasonableness of any remedial steps undertaken by the respondent (including the timeliness of its response, whether there was an investigation, whether the respondent had a non-discrimination policy, and whether there was compensation for any loss of wages, employment or other costs or damages incurred by the complainant); and

The importance of encouraging both employers and employees to address allegations of discrimination in a direct, timely and constructive manner.[6]

While the manager’s conduct was discriminatory, and therefore serious, it was limited to a set of offensive comments made on one informal occasion. The complainant did not face any negative job action (loss of wages, employment or other costs) and she did not allege that the comments reflected the attitudes of the employer or that they demonstrated a systemic barrier against First Nations persons at the College. The respondent acknowledged the discriminatory conduct, as did the manager. The College embarked upon a human rights resolution process that was “responsible, sensitive, prompt and proportionate”[7]. While the remedy was not perfect (because it involved the modification of Ms. Baker’s job duties so as to separate her from the manager), Ms. Baker did give her consent. In the end, the Tribunal determined that a hearing would not have come up with any new remedies except, perhaps, for the award of monetary damages. It found that the cost of holding a hearing greatly outweighed the monetary damages that Ms. Baker might receive.

[1] “Ms. Baker says that the topic of conversation was people's nationality and what languages they spoke fluently. During this conversation, she says that Ms. Nelson asked her whether she spoke her First Nations language. Ms. Baker says that she replied she did not because she was taken from her family and placed in a residential school during her childhood. She says that Ms. Nelson then spoke in derogatory and inflammatory terms about several matters involving First Nations people, including Ms. Nelson's niece (who has some First Nations heritage), the closure of a geoduck fishery and the "dirty" condition of First Nations lands and a longhouse she had visited. Ms. Baker stated that Ms. Nelson used several expletives and generally exhibited a stereotypical attitude toward First Nations people.”